There was news about transparency of selection process of Judges in High Courts and Supreme Court. There is news about transparency of selection of 'senior advocates' in Hight Courts and Supreme Court. But there seems to be very few news about why this designation 'Senior Advocate'. Sense of Law dives deep into the laws and facts about the so-called prestigious designations.
We will analyse what the law says. At present the basic law relating to profession of law and lawyers is the Advocates Act, 1961. In Section 2(1)(a) an advocate means an advocate entered in any roll under the provisions of this Act. The terms "advocate means an advocate" proves that there is no specific and special definition for the term "advocate". It is naturally a spokesman, supporter, pleader etc. If we peruse the etymology of the term we could see that it was two different latin terms viz. 'ad' and 'vocare' where 'ad' means 'to' and 'vocare' means 'call' especially for aid. Hence 'advocare' means 'to call to one's aid'. Advocatus is said to be the past participle of advocare. Old french term 'avocat' also means barrister, spokesman. There is no definition for a senior advocate in the Act. We may infer that he/she will simply be an advocate who is senior in profession.
The Act only lays down certain procedures for selection, admission and enrolment of Advocates as Senior Advocates in Section 16. Why such a classification to Advocates? Is it unjust by any notion? Section 16(1) of the Act says that there shall be two classes of advocates, namely, senior advocates and other advocates.
Advocates Act claims itself an enactment to amend and consolidate the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. We may now refer the objects and reasons for the Advocates Act. One of the object for the enactment was to amalgamate two classes of professionals namely, advocates and solicitors that stand between the law and the lay into a single class of advocates. This was brought to simplify and streamline the Court procedure thereby avoiding stratification of the profession and also reduce the cost of litigation. However we will not find any trace of answer to the question of why such classification of 'senior' was made. We may find that one of the main feature of the Bill was the division of advocates into two classes. So the Advocates Act simply joined two different classes into one and grouped the same class into two different one. This is a very strange feature. All this had happened due to the recommendations of the All India Bar Committee in its report dated March 30, 1953.
We could see that usually standing at the bar, special knowledge or experience in law is counted as criteria to be designated as senior advocate. However taking care of the fact that I am not going to completely vote against the classification and only trying to take down the facts from the fancy, a brief analysis of the pros and cons of being a senior advocate can be listed below:
- The senior advocate shall have pre-audience over other advocates
- Senior advocate can make concessions or give undertaking in the course of arguments on behalf of his clients on instructions from the junior advocate.
- Apart from the written ones, various other various prerogatives in Courts are enjoyed by Senior Advocates
As per Section 16(3) of the Act, senior advocates, in the matter of their practise, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe. Another provision in Section 49(1)(g) also enables the Bar Council to make rules restricting the matter of practise which the senior advocates shall be subject to. As per these provisions, Bar Council has framed certain rules. In Part VI of the rules it is stated that:
- a senior advocate shall not file a vakalatnama (contract) or act in any Court of Tribunal.
- a senior advocate shall not appear without an advocate on record in the Supreme Court and likewise in other courts
- a senior advocate shall not accept instructions to draft pleadings or affidavits, advise on evidence or do any drafting work of an analogous kind in any court or tribunal or before any person or other authorities, or undertake conveyancing work of any kind.
- a senior advocate shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal or before any person or other authorities in India.
Designating someone as senior and putting him under confinement of laws for not accepting any briefs directly does not read sound. It seems that designating someone as senior and giving him the pleasure of accepting briefs will make other junior lawyers difficult to survive. What kind of logic then it serve. Advocates-on-Record seems to be plain violation of lex loci. Why such a differentiation when Section 30 of the Advocates Act speaks otherwise? These are unanswered questions which paradoxically, will have to be answered by the honourable Supreme Court of India itself.
One may find that the Indian legal system is definitely marred by un-necessary classifications. It is uncertain why these laws are made and for serving what purpose these laws are maintained with sacredness. Now our only deal is to to wait and see more interesting legal battles in coming times.